Mbare Film Traders Association and Trade Union for the Music Arts Industry and Antipiracy Organisation of Zimbabwe v Zimbabwe Music Rights Association and Zimbabwe Association of Recording Industry and Commissioner General of the Zimbabwe Republic Police

### Preamble
1
HH 298-12
HC 4264/12
MBARE FILM TRADERS ASSOCIATION
and
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==============================MBARE FILM TRADERS ASSOCIATION
and
TRADE UNION FOR THE MUSIC ARTS INDUSTRY
and
ANTIPIRACY ORGANISATION PF ZIMBABWE
versus
ZIMBABWE MUSIC RIGHTS ASSOCIATION
and
ZIMBABWE ASSOCIATION OF RECORDING INDUSTRY
and
COMMISSIONER GENERAL OF THE ZIMBABWE REPUBLIC POLICE

HIGH COURT OF ZIMBABWE
HUNGWJE J
HARARE, 18 July 2012

T. Hangazha, for the applicant
W.P. Zhangazha, for the 1st & 2nd respondents
T.O. Dhodho, for Civil Division Attorney General’s Office

HUNGWJE J: On 20 April 2012 the applicant filed an urgent chamber application seeking certain relief against the first, second and third, respondents. The matter was set down for hearing on 26 April 2012 at midday. On that day it was postponed to the next day to allow the first and second respondent to file their opposing papers. It was observed too that no service of the application had been effected on third respondent. The applicant undertook to rectify this failure to comply with the court’s directive.

On 27 April 2012, I further directed that fully argument be presented by the parties through heads of argument. I directed applicants to file and serve such heads on or before 4 May 2012 and the respondents to file theirs after receipt of such heads by the next day. On 4 May 2012, the applicants wrote to the registrar indicating that they will only be able to file their heads on 8 May 2012 as Mr Hangazha was away.


On 8 May 2012, the first and second respondents’ legal practitioner, *Mr Zhangazha*, wrote to the applicants indicating that they had not yet received the heads in terms of the court’s directive and warned that they may be forced to seek an order compelling the applicants to file and serve the heads. Despite these threats, the applicants were not moved to act. In the event, I am constrained to deal with the matter on the papers filed. All three applicants as well as all three respondents have adequately stated their respective cases on the papers sufficient for the court to dispose of the matter on the merits.

The first applicant is an association of film traders. The second applicant is a trade union for the music arts industry. The third respondent is an anti-piracy organisation. The applicants seek an order barring the respondents from causing the arrest by members of the Zimbabwe Republic Police of individuals who sell pirated copies of musical and film productions in contravention of the Copyright and Neighbouring Rights Act [*Cap 26:06*] (“the Act”). The applicants rely on s 52 of the Act for the seeking relief. Section 52 recites:

“52 Owner of copyright entitled to remedies for infringement

(1) Subject to this Act, an infringement of copyright shall be actionable at the suit of the owner of the copyright.

(2) Subject to this Act, in any proceedings for an infringement of copyright there shall be available to the plaintiff all such remedies by way of damages, interdict, attachment, the rendering of account, the delivery of infringing copies or articles used or intended to be used for making infringing copies or otherwise, as are available in respect of the infringement of any other proprietary right”.

The applicants make the following averment in para 15, 16 and 17 of the founding affidavit;

“15. Although we are members of the international Conventions and Agreements or Copyrights Law (*sic*) do not clearly ratify the said conventions.

16. There are no original works of the international visual works available in Zimbabwe. All the work (*sic*) is downloaded from the internet.

17. Zimbabwe is a signatory to the Berne Convention and Trips Agreements that protect internal films from piracy but it has not ratified the international settlements into law.”


This application is seriously misguided. I say this for several reasons the main ones being the following.

First, the locus standi in judicio for the applicants was challenged and therefore needed to be established. It remains lacking, therefore, non-existent. Second, assuming in favour of the applicants that such locus standi exists, which does not, (but for the sake of disposing the matter on the merits I will assume they have standing), the averments made on behalf of the applicants are not sound in law. This is so because Zimbabwe is a member of the Berne Convention and a signatory to the TRIPS Agreement. In terms of s 11 of the Act, work that is eligible in terms of s 10 shall qualify for copyright protection if at the material time, the work’s author or any one of its authors, in the case of joint authorship, was a citizen of Zimbabwe or a designated country. The designated countries are published in Statutory Instrument 256 of 2006. Cinema houses broadcasting stations who pay fees to copyright holders, as well as the authors of such works deserve protection afforded by the Act. Work downloaded from the Internet is not copyright proof.

Third, s 59 creates the offences for which the police can lawfully arrest a suspected offender. There is an admission by the applicant of committing the acts proscribed by the law. They cannot be immune to arrest.

In the result therefore the application is devoid of merit. It is dismissed with costs on a higher scale.

Hangazha & Partner, applicants’ legal practitioners
Chinogwenya & Zhangazha, 1st and 2nd respondents’ legal practitioners
Civil Division of the Attorney General’s Office, 3rd respondent’s legal practitioners
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